Parliamentary Papers.

Hawke's Bay Times, Issue 1522, 5 November 1873, Page 3

Parliamentary Papers.

HAWKE'S BAY NATIVE LANDS ALIENATION COMMISSION. GENERAL REPORT BY THE CHAIRMAN, MR JUSTICE RICHMOND. Before entering upon the substantial matter of this General Report, a few preliminary statements and explanations are requisite. The first Court of Inquiry under the Act was opened by a quorum of the Commissioners, consisting of myself, Judge Maning, and Wircmu Hikairo,on Monday, the 3rd of February last, at the Provincial Council Chamber, in the town of Napier; due public notice having been previously given of the intention to hold the same at that time and place. Te Wheoro, the only Commissioner absent at the opening of the Court, shortly afterwards arrived at Napier, and all four Commissioners thenceforward sat together at every Court until the termination of the public sittings on Saturday, the 12th April last. No Court of Inquiry was held elsewhere than in the town of Napier. The Commissioners had, previously to the sitting of the Court, exercised their powers by making a few simple rules of procedure, and in conformity with these, notices were published from time to time in the Hawke's Bay Provincial Government Gazette, stating the substance of the complaints to be brought before the Commissioners. A list of the complaints compiled from these Gazettes, is presented to Parliament. The complaints have been consecutively numbered by us, in Arabic numerals. These numbers are referred to in the margin of our Reports. The total number of complaints preferred is 301, exclusively of forty-nine relating to old Crown purchases, into which we were not authorized to inquire. Eight complaints were wholly or partially withdrawn. These are noted in the list of complaints presented to Parliament. Such complaints as related to the same block were generally heard together, unless the issues raised were so diverse as to make this course inconvenient. These consolidated complaints, or in some instances, where heard separately, single complaints, are referred to as "Cases." Each case is distinguished by a Roman numeral, and is separately reported upon. Our particular Reports deal in the whole with eighty-one complaints collected into thirty-four cases. Of the eighty-one complaints, three were dismissed as not coming within the limits of our inquiry. One was repudiated in open Court by the supposed complainant, whose name had been used without his authority. Mr Locke, the Eesident Magistrate of the Taupo district, took upon himself, at the request of the Commissioners, the duty of making an abstract for the purpose of publication of the letters of complaint which poured in upon us. This duty he performed so efficiently, that no Bingle exception was taken to the fairness of these abridgments. The same gentleman, and Mr Hanson Turton, rendered us other valuable assistance in the work of the Commission. The Commissioners have also to acknowledge that the Provincial Government did everything possible to facilitate their investigations. The proceedings of the Commission were opened by a short address delivered by myself, and translated, sentence by sentence, into Maori. A copy is laid before Parliament. The main purpose of what was said, was, to impress upon the natives the fact, that the Commissioners were directed merely to inquire into and report to Parliament upon complaints, and that they were not empowered to give any decisions. We had reason to think that undue expectations were being formed of the probable results of our mission, and thought it advisable to take the earliest opportunity of moderating these hopes. As Chairman of the Commission,! now desire to say a few words on the circumstance that the Commissioners have been unable to concur in one General Report; and, that in the Heretaunga and some other cases on which we substantially agree, separate Reports are presented by Judge Maning and myself. Two extraordinary causes have tended to prevent unanimity. In the first place, the composition of the Commission, equally_ taken from the two races, made it next to impossible that its members should be able to adopt exactly the same view of matters such as have come before us—matters vitally affecting the relations of Pakeha audMaori, and involving discussion of the measures requisite to bring the native people within the circle of our civilization. Apparent unanimity could only have been brought about by a process of indoctrination which would have robbed, I submit, of their peculiar value, the opinions of the Native Commissioners. From the first, indeed, I determined that it would be wrong to ask the assent of my Maori colleagues to views only possible from a European stand-point. In the second place, the great mass of business presented to us—a mass such that we were unable to deal directly with much more than one-fourth of the whole number of complaints—detained us, taking evidence at Napier, until the latest day to which other official duties could be postponed, arid we were compelled to separate without the possibility of deliberating together upon the most important of the cases brought before us, or upon the general questions raised by our inquiry as a whole. This latter circumstance made it more convenient to report separately on the Heretaunga Case. Nevertheless, with respect to many ot the minor cases, upon which Reports were prepared and discussed at Napier, it will be found that we are substantially agreed ; although Te Wheoro's absence in Waikato on service of importance, will, I believe, prevent the formal notification of his assent to many of the judgments of his colleagues. Between Mr Maning and myself, there will be found scarcely any, if any, difference upon particular cases. Some difference, however, there is upon more general questions ; as will be apparent on perusal of our separate Reports upon the Heretaunga Case, and our General Reports. Such then, on the whole, is my apology for presenting to Parliament a mass of matter which may, I fear, seem almost as intractable, and out of all reasonable compass, as was the business itself with which we had to deal.

The complaints heard by us—exclusively of those concerning the old Grown purchases specified in the schedule to the Act, which were chiefly disputes about boundaries—may be classified as : I. Complaints of fraud in relation to the particular transaction. IL Complaints of the operation of the Native Lands Acts, and of the procedure of the Native Lands Court. The first class is subdivisible into complaints : 1. That, on purchases by native dealers the vendor was not paid in cash, but compelled to accept credit in account-current with the purchaser, and to take the value out in goods,

2. That part of the purchase-money went to pay off old scores for spirits. 3. That the sale was forced by undue pressure on the part of creditors.

4. That the consideration was grosslyinadequate. 5. That Government or Missionary influence was used to bring about a sale. G. That the purchase-money was not ikilly paid, or that other conditions of sale were unperformed.

7. That the purchase-money was not fairly apportioned amongst the vendors. 8. That the concurrence of leading chiefs, acting as agents for the rest of the vendors, was purchased by secret gratuities.

9. That the transaction \vas not properly explained by the Interpreter.

10. That the native vendors were not I advised by a lawyer. I now proceed to consider, seriatim, the ; grounds of complaint ranged under these several subdivisions. I. l.—As to Credits for Purchase-money in Account Current. Nearly all the sales which we investigated were made to dealers. The land was in fact taken in discharge of a previous debit balance. It cannot be satisfactory to anybody to part with property when he has already dissipated the price. When we see how many educated persons are too lazy or indifferent to check tradesmen's accounts against themselves, and how bills run up to unexpected totals, it cannot be surprising that natives are discontented with the results of their own careless and extravagant expenditure. We had many long accounts before us, and did what we could to test the the fidelity with which they had been kept. We employed an accountant, who examined portions of the books of two of the dealers whose transactions were the most extensive. This gentleman checked the posting of the ledgers from the day-books. He was instructed to report particularly any seemingly gross overcharge, and every appearance of fictitious, altered, or otherwise fraudulent entries. We also endeavored, but without much success, to test the actual delivery of the goods. Many items were admitted by the natives concerned; and the accounts being generally two or three years old, it was not possible to attach much credit to the occasional denial of the receipt of small parcels of ordinary goods. On the whole, the result of our examination was favorable to the traders whose books we inspected. For more particular information I beg leave to refer to the separate reports of Mr Witty, and to my own note on Mr Maney's accounts. No doubt the temptations to fraud in dealings upon credit with the more ignorant natives are very great. It would, of course, be possible to check by legislation the extension of credit to natives, but the case seems to me, on the whole, not one for exceptional legislation. The Fraudulent Sales Prevention Act, now in effect, provides for a previous investigation of accounts before the allowance of a conveyance ; and the incumbrance of tribal property with the debts of individuals will, I trust, be put an end to by amendments in the Native Lands Acts.

A good many charges were made against dealers, that they refused to pay cash for land which they had agreed to buy, and that the vendors were thus compelled, or induced, to begin to take goods. In the Moteo Case, Torotoro declared that, after putting him off many times, Sutton told him to come into town when the steamer arrived. He did so, but Sutton said, "This is not the vessel that has my money." "At last," Paul told us, "my thought ceased respecting that money. Sutton said, ' Won't you take sugar and flour for your money ?—anything you desire out of the store you can have.' I then saw that Sutton's steamer was his store. I began to take goods." A trade may have been sometimes dexterously forced in this way, but the proof of it broke down in every case. In the Moteo Case, a written agreement was proved postponing payment of the balance of pur-chase-money ; nor does Torotoro seem to hate been a customer who needed much solicitation for orders. There were not many cases in which natives had balances at their credit; most of the land transactions having been eutered into for the purpose of liquidating debts. In the few instances in which money was coming to natives, I think they must known that they could insist on payment in cash, and only took goods because they preferred doing so.

2.— -As to Debts for Spirits taken as part of the Consideration.

Very many o£ the complaints were founded on the allegation that a part of the consideration had been received in spirituous liquors. Mr Maning and I intimated very early, that we were not disposed to allow of this as a ground for setting aside transactions otherwise unexceptionable ; leaving the Native Commissioners to express their own views on the subject. This resolution of ours was adopted as members of a Court of Conscience, expressly freed from the obligation of legal precedent. Whatever the law may say upon the matter, it appeared to us that it would be unconscientious on the part of a native who had received value in this shape to attempt to rip up the transaction. If it be wrong in the dealer to sell, it is. we argued, wrong in llie native to buy —morally wrong; whether legally punishable or not. Nat've and dealer are thus clearly in fault together ; though, it may be, not equally to blame ; .and it is against morality that one party should be rewarded, and the other punished, for an action in which both must concur. The State may be justified in enabling one parly to an illegal bargain to repudiate it, after he has taken the full benefit of it. But such legislation is justifiable only as deterrent—as meant to prevent the case occurring. At all events, that the law allows repudiation cannot make repudiation honorable or right. On this ground we determined that the native vendor was, in foro conscientice, debarred from raising this objection, That a breach of the law should be remunerated by enabling one of the offenders to break a contract, is an anomaly with which it is to be hoped that the native people will not be allowed to make practical acquaintance, as it would tend doubly to weaken and confuse their still feeble sense of legal and moral obligation. It would make the matter worse that to the Maori would belong all the pleasure and prpfit, whilst on the Pakeha wpujd fall the whole penalty of wrong-doing. No worse lesson could begiven to people who have yet to learn that they must themselves bear the burden of their own follies and misdeeds, and not hope to shift it on to other shoulders. Besides, to pretend to enforce in this most objectionable way a law openly set at naught, not by individuals only, but by public authorities, would be monstrous. Upon this point I do not know that retro-active legislation is required. I rather think not; but if ever justifiable it is so here, in the common interest of vendors and purchasers,

We directed Mr Witty to analyze some of the accounts, with a view to ascertain the different heads of expenditure, and the proportion spent on liquors. In the case of Te Waaka Kawatini's account with Mr Maney,. commencing 25th October, 1869, and closing Ist February, 1873, we found a total of £948, Dr. items, thus distributed :

Where the wines and spirits equal thirtyfour per cent, of the whole. These are probably amongst the worst specimens that could be found—these two natives not spending upon their lands anything like the sums disbursed by some of the more important and more intelligent chiefs. It must also be recollected that Maney was keeping a hotel during the greater part of the time covered by these accounts. The analysis of Paul Torotoro's account with Sutton (who is a general dealer in Napier) gives not quite nine per cent, expended on spirits. 3.— Sales under alleged Pressure of Creditors.

On. this head of undue pressure by creditors, I have little to add to what will be found on the subject in my report on the Heretaunga case. The complaints relating to this block will be found best to illustrate the nature of this particular objection. The English law as it stands (or lately stood) making the person and property of a debtor liable to be taken in execution, it cannot, in general, regard the creditor's threat to exercise this right as improper pressure. If, indeed, the pressure so put on should lead to an unconscionable bargain for the sale of property, such a contract may sometimes be set aside. But in itself mere urgency for the payment of a just debt cannot in law, or conscience, be objectionable, because it can always be got rid of by paying the debt. In itself, therefore, the objection that creditors pressed for a sale of property is not one to which any weight can attach. The sooner the natives learn to recognise their liabilities in this respect, the better it will be for them. 4.— lnadequacy of Consideration.

The question of inadequacy of consideration we found to be a very difficult, not to say an insoluble one. We have in this colony to deal with values dependent on extraordinary circumstances and contingencies, increasing at times with immense rapidity, but always liable to violent fluctuation. The price paid to natives for land has varied, we found, in cases which catne under our notice, from as low as 2s. per acre in the case of the Tunanui block, and 3s. Bd. per acre in the case of the Petane block, up to £lO per acre obtained by Karaitiana for a piece of land at Pakowhai. All these blocks were rural land, but the Tunanui and Petane are rough, and unfit for tillage. These figures indicate a very wide range of prices according to quality and situation, thus adding to the difficulty of the question. A colonial valuer, who quits hold on the simple principle that a thing is worth what it will fetch in an open market, enters upon an almost trackless field of conjecture. Most of the purchases were made, as has been slated, by dealers, or through the agency of dealers. We did not find that the first purchaser had in any case realized an inordinate profit upon his bargain. For the most part, the purchases were immediately disposed of to the Europeau lessee in occupation of the land, either for the sum they cost or at an inconsiderable advance, the trader in general not even charging commission, but finding a sufficiently solid advantage, no doubt, in the settlement of his accounts against the native vendors. In some cases, especially in the case of Heretaunga, it appeared that large sums of money, exceeding the purchase money, had been raised upon the security of the block when once in European hands. Too much stress must not be laid upon this. The mortgagee often relies, in no small measure, upon the personal character of the mortgagor; and when a settler of good standing borrows for the improvement of his estate (as in the case of the purchasers of Heretaunga) the lender well understands that his advances will be so applied as to increase his security. In comparing the prices obtained by natives with those paid to Europeans for land of the same description, the supposed precarious character of a title under natives must be allowed for; and the low prices paid in former times by the Crown have not perhaps ceased to influence opinion, and affect the market. A settler buying land of natives may recollect that for Te Hapuku's block of 279,000 acres, the Crown paid only £4,800, or at the rate of little more than 4d au acre ; and for the Ahuriri block, of inferior land, containing 265,000 acres, only £1,500, or less than l|d per acre. On the whole, I feel myself unable to say, that, in any single case before the Commissioners, the consideration paid was, in my opinion, grossly inadequate.

s.— Sales under alleged influence of Government Officers and Missionaries.

The Heretaunga Case is the sole example of a complaint that Government or Missionary influence has been abused to secure a purchase. I have nothing to add to my observations upon that case. 6.— Partial non-payment of Purchase Money, and other non-performance of Conditions of Sale.

There were a few complaints that the purchase-money had not been fully paid. But this class was not numerous ; nor in a single instance was the charge established with any degree of probability. It is impossible to attach weight to evidence such as that of Torotoro, in the Pahou Case ; or of Toinoana, in the Heretaunga Case. As regards the non-performance of other conditions of sale, it was admitted in several cases that reservations and exceptions actually stipulated for had been omitted from the * conveyances; and undertakings were given to set the matter right. [See Case No. 11. (Pahou), Case No. 111. (Waitanoa).] In no instance was there any ground for supposing that the omission was fraudulent,

I,—Unfair Division of Purchase Money. There were a good many complaints by natives who had joined in a sale, that they had not received their due proportions of the purchase-money. We have, in general, reported against such claims on the ground that the shares had been settled by the natives themselves, and that the justice of the division could not be questioned; at all events, after long acquiescence. In case No. 11. (Pahou), it appeared that some of the grantees who had signed the conveyance got nothing. On the other hand, Tareha, and his scribe, Paraone Kuare, through whose influence, unquestionably, the signatures had been obtained, received considerable sums, though they were not in the grant The case appeared to be one of those in which, notwithstanding the issue of a Crown Grant, the Maori owners looked on the Native title as still subsisting, they not having concurred in any act for its extinction. The purchasers of the block also seem to have acted in accordance with this notion. The unpaid gr ntees appeared in Court, and evidently belonged to the rank and file of the tribe. Their complaints had all been drawn up by Paraone, and were supported by Tareha, who expressed himself willing that the claimants should receive ptn muiit from the Commissioners. Umi< r the circumstances, we all thought thai the complainants must look to their chief for a share of the money which he received. It was net pretended that any promise of payment had been made to them by the purchaser. B.—Secret Gratuities to Chiefs. The objection that the leading vendors received secret gratuities, only occurred in the Heretaunga Case. What is said in my report on this case makes it needless to discuss the subject here at length. It casually appeared from Mr Tanner's evidence, that Karaitiana, on occasion of the execution of the legal lease of the block in 1867, took Mr Tanner aside at the last '-and demanded a secret bonus of £SOO for himself, which he obtained. This was not made a topic of objection, and seems, indeed, to have been a pure act of extortion. On this ground it is perhaps to be distinguished from the secret stipulations for the grant ,o£ annuities to Karaitiana and his brother, which were deliberately pre-arranged with the purchasers. In such stipulations one may recognize somewhat ol that finesse and diplomatic insincerity which often infects negociations with an Oriental people. The parties should remember that the validity of such transactions may at any time have to be judged of upon the severe principles of an English Court of Equity. ' -, 9.— Complaints againkdnte/rpreters. Accusations against liceßMjd Interpreters of wilful mis-translation, imperfect explanation of documents 1 ,. were,frequent. Charges of this kind mtfistj in general, be equally hard to prove and to disprove. In some instances, as that of the contract for the sale of the Heretaunga Block, the other established facta of the case were a sufficient refutation. In many cases the precaution had been taken to procure signature of a Maori translation of the English documents. There was only one unimportant case, (Te Kiwi), in which we saw reason to believe that the Interpreter had failed efficiently to perform the duty of translating and explaining the instrument. Even here, my own' opinion—ccnfinjisd though it.is, by the concurrent judgment of Mr Maning, as expressed in his own separate report, written without knowledge of my report, as was mine without knowledge of his—is by no means a positive one against the Interpreter; and my recommendation for his suspension is founded on different and better established grounds. The principal cases under this head, are :—No. XIII. (Heretaunga), No. XVII. (Omarunui N0.2),N0.XX1. (Waipiropiro), and No. XXII. (Te Kiwi.) I cannot, however, wonder at the distrust of the Interpreters displayed by the Native vendors, seeing how thoroughly, under the existing system, the Interpreter is identified with the interest ../if the purchaser who employs him. In the Heretaunga case, <j"> e Interpreters who certified the explanation of the contracts and coi>vayances were to be paid a lump sum " if successful." A contract of this kind is palpably objectionable. The Regulation of 7th October, 1870 (see New Zealand G -n\ment Gazette), was rightly aiuiwl ' this improper contusion of the fuiiiMhj ; .s of Interpreter and negotiator. The Interpreter who attends the conferences of the parties to a bargain may be—almost of necessity must be—to some extent, a negociator. But the Interpreter who translates and explains the contract or conveyance, ought to be absolutely neutral. The principle of the provision of section 74 of " The Native Lands Act, 1865," requiring the attestation cf a judicial officer to dispositions of Native land, is a sound one; although the provision itself can have been neither convenient nor effectual. The Regulation of 7th October, 1870, is one the observance of which it must be next to impossible to secure in practice. "The Fraudulent Sales Prevention Act, 1870," has fortunately rendered this point of less moment.

This is the proper place to ohserve on the practice of allowing Government Interpreters to take private business, and that not merely the interpretation of documents, to which there can be no objection, but the negociation of purchases, or what comes to nearly the same thing, the interpretation of negociations. The incongruity of the public and private employment becomes glaring, in a case where the sale of a block occasions, as in the case of Heretaunga, heart-burnings possibly dangerous to the peace of the country. The public duty of the Interpreter may make him, one day, the medium of the Government's refusal of pecuniary aid to a Native chief, who ia hoping thereby to escape the necessity of selling a favorite spot, His private business may send him, on the morrow, to serve a writ, sued out by the purchaser to compel specific performance of a contract for the sale of this same spot. Something very like this occurred in the case of Heretaunga. Is it surprising, under such a system, that the natives should suspect the Government to be in league with the private purchaser? I have no complaint to make of the conduct of the Messrs. Hamlin, which appears to me to have beeu throughout that of upright men. But the position was a false one.

10.— -The Native Vendors have been without Legal Advice. The last ground of complaint under the head of " Fraud," or quasi fraud, which I have to notice, is that the vendors were not advised by a lawyer. This is an objection raised for the Natives ; never by them. In the view of an English Court of Equity, examining an English transaction, it would be a very serious objection. Several considerations show that much less, weight is due to it in such cases a's we had to deal with, In

the first pkee.it luis never been the usage fin' natives to employ professional as.-c's-hmoo. on sale of Ijikl. Id former days, on cessiiin (6 the Crown, the thing would have been absurd, and liiu -old practice continues nt the present time, although the natives are holding under Crown grant, and execute conveyances in English form—so, at least, it is in the Province of Hawke's Bay, and so I believe it to be in the North. In the nest place, the extreme simplicity of transactions makes technical advice of a good deal less importance than in England : not, however that the natives do not often greatly need the advice of a sound and honest man of business. They themselves are averse to the employment of lawyers; at leasl if they have to pay them. Whether taught by instinct, or experience, or under the influence of a groundless prejudice, we found them obstinately refusing the services of the solicitors practising at Napier. Few solicitors arc acquainted with the Maori tongue. In addition to a solicitor,'nn interpreter would be wanted, adding to the cost and difficulty of transactions; ; and, after all, a lawyer could in a few eases do more on the side of the vendors than any ordinary man of business could do. I remember onlv one case in which loss actually occurred to a native through the want of proper legal advice, and that was not on a saie of land. Paramena Oreone advanced a large sum of money, without security, to a man named Harrison, for the purchase of a threshing machine. On Harrison's bankruptcy the machine was seized by his assignees, and the native lost some hundreds of pounds. 'hi several other cases, natives were left for a time without security, which a solicitor on their behalf would undoubtedly have required; but no loss ensued. Reservations or exceptions in favor of natives have been improperly omitted from the deeds of conveyance. But in these cases, on the omission being ascertained by us, undertakings were at once given to make good the defect. On sales by natives, I may observe, in conclusion, legal oil vice appear not to be .much sought for oiMho side of the pr-s&haser. More than one large buyer gave the Commissioners to understand that he only resorted to a solicitor for the formal work of preparing conveyances, and never for advice. The solicitor in an important transaction coiiudained to us that he was not taken into tic confidence of his so-called clients. This seeniH to show a slate of things in which the lawyers have been pushed asido arranging the terms of contracts, both parties preferring to do business wilbou| them as far as possible. S\v<:h are the qorosfdgrations which induce i mo to lay upon the absence [ of legal adviirC on the side of the native ! an indicWJon of fraud, and a [ ground for

Having now goi/le.through.the principal beads of impntt/fi fraud, I have to state that, in my opviiioh, nothing "was proved utide/those <i S n da which, in'good conscience to invalidate any.purchase investigtfr; dby us. I agree vvith my colleague, Judge Mailing, that the natives appear to have been, on the whole, treated fairly by the settlers and dealers of Hawke's liny. I express this opinion as a member of a tribunal not enabled, nor pretending, to draw legal conclusions. Soma of the stricter principles of an English Court of Equity may possibly be found to have been infringed upon in transactions examined by us. . 15ist it will lie difficult for any 'Court to apply ordinary rules in circumstances so peculiar. 1 further Judge Mailing that (he to ■ vepudute.for the .sin... of gam has been largely . at work. .1 believe it was thought that the Legislature, in appointing our Commission, was inviting repudiation. In no other way can so largo a number of complaints of fraud, supported by so Jitlle tangible evidence, bo fully accounted for. We were, in effect, asked to-believe (hat not one single honest transaction in the pu.r.clinse of laud has taken place between • persons: of the two races. \ Wo :fotiud. the Mauri of Hawke's Lay pretending to. say of his Pakcba neighborj,: "There is none tl.at. doeth good;- no, not one/' All, from the Superintendent downwards —public officers, missionaries, lawyers, dealers, .interpreters, squatters—were, I may say wit&WHt exception,• included in one sweeping coy idem nation ; and were characteristically/ supposed to;be acting in coucfylj/'ififke mcinbeis. of a tribe, to plunder 'The Maori. Just; as in particular casts before us the,attempt of individual native to prove too much was constantly ensuring, their total discredit, so, taking i'tu; whole - iiuiss of cases, the

huge .exaggeration of, the complaints is their refutation." Karaitiajia Takamoann, •in. the , JJikutolo case, gave (he only example of the spontaneous repudiation of mi unconscionable demand. Alierc to Koari twice withdrew [.w Cases Xo. XI. (Pela'ne). and No.XIV. (Ohikakarewa)] from what he found was an unsuccessful experiment upon us, In one 01 two other cases I thought I perceived sonicthing like ft blush 011 the face of a complainant. But in general, on such questions as were raised before us, the Maori shows that he belongs to i! au ago prior to morality.''

Vet I am far from thinking that the Maori** ot; Hawke's Bay have no real grievances in the matter of their lauded rights. These are, however, to Up, found under the second general division of complaints—-complaints, namely, of the operation of the Native bauds Act, and of the procedure thereunder of the Native Lands Court. They are, of course, political grievances; and may be ranged iuider the following heads : complaints-

J. Thai; the issue of a Crown grant for tribal land has extinguished the native title in favor of a few individuals ; the community interested acquiescing in complete ignorance of the effect of what was being done. 'l. That the Court has unduly favored alienation by refusing to impose restrictions, when asked for by natives interested, and in other ways. '■'>. That lands excepted from cession aa reserves have been dealt with by the Native Lauds Court, and transferred as private property to a few persons.

11.-— l. No one can doubt the expediency of legislation to promote the breaking up of _ tribal properly. But, in ei'fuctitfy this, justice, or at least good policy, requires two things: first, that the ua£,TO ownership be ascertained: secondly, that the general consent of Jhe native, owners to the extinction of <ho native iemu' ( ' be given. Simple as are these requirements, they have been disregarded in the existing law as practically administered. AS to the tor >• i point, numerous cases were Drought before ■. in which it was proved, in the clearest , that the large majority of the native --• were'omitted from the certificate >"-uml under the twenty-third .' • The Native Lands Act, 1865."

•' >. I. (Papakura), No. 11, X. ffji} p'li Laslj), No. X. , ' «'" Xiii. (Heretauiiga), SO. &.& No, XXIII. (Hiku-

folo).] This was done with the knowledge, and; sometimes, it is said, at the instance of the Court, <{io construction put upon the lir»t proviso to the twenty-third section being, that where there appear to be more than fen native owners, a ceniiicate may issue to ten, or any less number, if the rest assent. The Court is thus put in the false position of certifying that the natives chosen by the whole body are " owners according to native custom " of the land in question, this plainly importing that they are exclusive owners. Such a certificate is necessarily false ; for, if the native title is to be considered as subsisting, the persons named are not exclusive owners; if the native title is to be considered as extinguished in their favor, they are not owners according to native custom. But the main evil has resulted from the absence of proper provision upon the second head, viz., for the ascertainment, before the issue of a Crown Grant, that the native owners had assented to the extinction of their rights in favor of the proposed grantees. In several of the cases I have referred to, it was most distinctly proved that nothingwas further from the intention of the natives concerned than the cession of all their rights in the land to the persons in whose favor the certificate was issued, these persons being named expressly as representatives, of, or trustees for, their several hapus. Yet it has been a matter of course to issue a Crown Grant to the persons named in the certificate, who, indeed, Dy„the mere order of the Court, are at once clothed with powers of alienation. From the date at which the grant takes effect, it is held that the whole body of former owners, with the exception of the grantees, cease to have any right or interest whatever in the land granted. Still the mischief wotdd have been small, if the powers of alienation incident to the ownership of the grantees had been akin to the express powers of sale and leasing vested in the trustees of a settlement. In that case, the concurrence of the whole body of grantees would have been requisite to every lease, sale, or mortgage ; and their representative character would have been maintained in all cases where they were numerous. The alienation of separate shares, which forms the principal grief in such cases as Herclauuga and Ohikakarewa, would thus have been avoided. But it is held, on the contrary, that the Crown Grant vests in each grantee t\ic absolute ownership in an undivided share, which at, once becomes saleable by him, and liable to be taken in execution for his debts. This result of passing land through the Court appears to have been unexpected, not merely by the natives interested, but even by some of .the Judges of the Court, who wore under the impression that a single grantee could not deal with his share, and who are said in the Heretaungh casa to have given the natives an'assurance to this effect. Such a state of the Jaw appears to me to constitute a very serious grievance. But, that we may not take an exaggerated view of the evil already occasioned by it, it must be remembered that the real injustice to native owners has been confined to those cases.in which the shares of the weaker and more improvident grantees have been separately bought n.p. 'Transactions, such as the purchase.by the Provincial Government of Papakura, Hikutoto, <nd Pukahu, where the grantees, being leading chiefs openly elected by the tribe, have as openly treated, in a body, for the salo of the block, cannot be complained of.From a return with which wo jwe'r'c supplied by Mr Locke, it appears that Crown Grants without restrictions on alienation have been issued within the Province for 6(59,220 acres of land, to l>f)S different individuals of the native

! race. The names of so I,llc of tllcse? 558 ! persona appear over and over again in many grants. . On (he average, each person, .appears in. two grants, The list •probably comprises every man and woman " *o.l-'■mhrk- amongst' flic Maori population. •The total population is returned at 3,773 ..'souls, ; The return dgesmot give the numbers of'tho sexes, or 'of-children. Perhaps 'olnvifi every four 0!' the adult population is included in some grant of alienable lan'd. lii" ''regard to many of those included, it may fairly be urged that they have received their full share, at least, of the common inheritance, and should not be heard to complain that they have been passed over in some instances. Nor should such persons be allowed in any case to object that the tribal title has boon unfairly suppressed. True, the procedure of the Court has snapped the faggot-band, and has left the separate sticks (0 be broken one by one. But they should not impeach that procedure who have accepted under it the rights and advantages of independent proprietorship. This'reason is valid if we are to treat the natives as out of their minority, and bound by the ordinary obligations of civilized men. As regards the deficiency of: the provision left for "outsiders/'' we were not able to form any opinion. The area of inalienable land is stated at 221,DU0 acres, and 10(5,507 acres arc stated not. to have I gone through the Court. A large part of ! these areas may be rough, but it seems likely that there is left an amply sufficient j supply for a population much larger than i ilie actual one. lint these remaining possessions ot the natives appear to be most unequally distributed amongst the j different sections of the population. Of : the 10(),oli7 acres which have not passed the Court, the I'orangfilmu natives hold about 100,000 acres. For further information on this subject, .1. beg to'refer to Mr Locke's letter oi 14th April, 1873. 2. The second ground of complaint. Hint the Court has unduly favored alienation, may be passed over briefly. There was no tittle oi evidence that t*he Judges op the Court had ever acted otherwise than with perfect good faith in their recommendations as to the imposition of restrictions on alienation. It is enough to refer to the Ilereiaunga ease, as one in which such a charge is made by Henaro Toiuonnn. In the Taniaki case, Henaro Matua appears to impute that the Court ! so arranged its certificates as to facilitate the contemplated purchase by the Crown of the district—' 4 the Seventy-Mile Bush." \ If tin's kind of suspicion is to be raised iti the native mind, it seems doubtful '

j policy to resort to this Court for a title on I Crown purchases. It ought to shake the ! unlimited faith which some persons seem to place in mere political machinery and the words of statutes, to find the samo identical distrust expressed of the Court which was supposed to attach to the Land Purchase Department. ;]. The third and last, ground of complaint affects a limited but very important class of lands— the old i alive reserves out of ceded blocks. Only one case was before us in which a complaint arose, grounded in part on the action of the Court in respect of such reserves. See Case No. X. (Moeangiangi). Case No. IV. (Wharerangi) also raises a ques- ' Hon, whether the existing provisions in relation to these reserves are sufficient for their proper protection, It is enough j to ruler to the special reports on these [ two cases,

Lastly. I have to discharge the duty of recommending to Parliament such measures as may, in my opinion, tend to provent, the ivcurrenco of ."rounds of complaint similar to those which wc have had to investigate. I agree, in the first place, with my brother Commissioner, Judge Mailing, that it will be proper to maintain in our legislation the principle of the " Frauds Prevention Act" of 1870. Without some such check, the peace of the country, under a system of direct purchase, will be per-* petually liable to be endangered by the fraud and rapacity of individuals. I am of further opiniou, that as the existing Native Lands Acts should be repealed, the Native Lands Court itself clearly ought to be maintained, with certain needful reforms. Its jurisdiction has been accepted to a grea.t extent by the natives; and this alone is. an immense step in advance. A new Native Lauds Act ought to be framed ou the simple principles to which I have adverted.

j (1.) Provision ought to be made, in the I first place, for the ascertainment of native title as it actually exists, and for the issue of certificates of native ownership in favor either of a tribe, one or more hapux, or j individuals. Such certificates should in j nowise modify the native tenure ; and I especially should have no effect whatever in authorizing alienation to Europeans. (2.) No Crown title should issue, either to native proprietors or directly to European purchasers, except upon a certificate of a Judge of the Court that all the native ; owners have ceded their title in favor of the proposed grantees—-or that the grantees are the sole native owners. The native owners should always be informed by the Court before their consent is recorded, that its effect will be to transfer their own rights in the land to the grantees, without any further claim on their part either upon the land or its proceeds. No Crown title should on any account be issued whilst the tribe or hapu maintains its right. To admit of grants to representative men leads to fatal confusion between English and native tenure. It would be well that the principal native owners should lie required to sign, ou behalf: of the community, an instrument of cession into the hands of the Crown for the purpose of making the proposed gran;. A very brief memorandum upon the Court's certificate of cession would suffice. (3.) The great object being to prevent for the future the confusion of English and native tenure, any intermediate state of title should be admitted with great caution. I should propose that a tribe or hapu holding a certificate of native ownership might, if unanimous, be allowed to elect a number of trustees amongst themselves, with the addition, possibly, if they wished it, of some European officer of Government. Strictly defined powers of sale and leasing to be expressed in the Act, and referred to in an appendix to the certificate of native ownership, might be vested in these trustees. All rent and sale moneys should be held in trust for distribution amongst the tribe or hapu ; the receipts of the trustees being, however, a complete acquittance to lessees or purchasers. ■ The Court should be empowered to fill up vacancies in the trusteeship in accordance with the wishes of the owners; and no exercise of the powers of the trustees should be allowed whilst their number should be reduced by death or oWjer'wiiio below som'c defined limit. Tin's is'only a legal form of enabling the chief

, men to act for the community as they } have .always done. The arrangement \ might ho made perfectly intelligible to , natives; and they should be expressly j warned that they must look to their own ! trustees for sale-moneys and rent, and not . to the strangers dealt with by the trustees. . TJic great point is, that no interim modification of the native tenure should be allowed unless of the most intelligible \ and well-deiined character, and that the express, and practically unanimous assent of the native proprietors should be given to such modification in open Court. Tenure by Maoris under Crown Grant should be English tenure to all intents and purposes, subject to such modifications in relation to succession as may be found expedient, and to such express restrictions of the power of alienation as may in particular cases be imposed. Such absurdities as Crown Grants under which the quanhtiii of interest in each of several grantees is left to be determined by native custom, should be abolished. As regards improvements in the constitution and procedure of the Court itself, I must speak sparingly according to my limited experience. But there"is one point of great importance which has forced itself upon my notice. The Judges of the Court at present, as I understand, conceive themselves to be bound to ignore every fact, however notorious, which is not brought forward and proved by some claimant or counter-claimant. To Wheoro, naturally enough, complains of this in his letter to Colonel Haultain, printed in the Appendix to the Journals of (he Legislative Council, 1871. [See Appendix to Colonel Haultain's Report on the working of the Native Lands Acts, p. 29.1 " Perhaps," he says, "in some cases, the Judge of the. Court has seen the cultivations and the houses; but he only pays attention to the statements made by the parties before ' him, and says that it would not bo rUJht for, him to speak of what he lias seen, I ut only to take what is stated in the Court." A tribunal acting on such a principle is unfitted for the investigation of native title, as it may well happen that the parlies

before the Court agree to serve a common purpose l>y suppressing material facts. The supposed analogy of proceedings in ordinary Courts of Law or Equity is quite a mistaken one. The judgments aud decrees of such Courts commonly bind only the litigant parties, and those" who claim through them ; whereas the judgments of the Native Lauds Court arc what aro'technically termed judgments in rem. which conclusively ascertain title not merely as between the parties in Court, hut as against all the world. A Court with such a formidable power needs to be furnished

with a means of investigating, independently of the parties in Court, the validity of claims made before it. Some power is wanted of investigating the native title out of Court. The Court needs kntacula wherewith to seek out, aud grasp for itsfclf, all the facts of the case. ' It would not be well to throw upon the Judges of the Court the duty of investigations which, to be effective, should be made on the spot. This is rather an administrative than a judicial function, and might be committed to some officer of the Native Department in each district appointed fortius duty by the Governor's warrant. A .Report of this officer on every application for a certificate of native ownership, or of cession, should be presented to the Court. This Report should be open to exception by the parties interested, and should be continued, over-ruled, or remitted for amendment to the reporting officer, as the Court might think fit. But there should be no jurisdiction to proceed without such a Pfinpvt

There is another rpason forcoimeetirigan administrative department with the Court. The work of individualising native title, or in other words, of partitioning the estates oil the native trine?!, cannot be properly performed by a Court which initiates iio'liiiijg, but proceeds, as the Native Lands Court has liitliPito done in most cases, only on the application of some particular claimant. In the instance of the Ahuriri natives, when the Native Lands Purchase Department ceased its operations, there remained intervening between the Ahuriri block on the north, and Te Hapuku's on the south, a most valuable tract of land still subject to the native title. The area of this district, which stretched southwards to Te Aute, and ran back between the rivers Ngaruroro and Tuetaekuri to the boundary of the Province, was more than a quarter of a million of acres, and it comprised the best agricultural land of the Province of Hawke's Bay. Surely the partition amongst the native owners of this magnificent estate ought to have been supervised by some Executive Department connected with this Court, and should not have been abandoned to the hap-hazard process of divisiou which, has actually been resorted to. A work of the kind cannot be properly dealt with piece-meal, for no single grant ought to be issued without considering what grants have, been already made, and to whom ; what claimants reniaiu unsatisfied ; and what land is left to meet their claims. Without proper machinery for the purpose, and, it would even seem, without legal powers (for the provisions of the 24th section of the Act of 18G5, is wholly inadequate), the Native L.vnds Court has had cast upon it this work of parcelling out a whole country amongst its native owners. It would be little less than a miracle if some forward claimants have not got greatly more than their due; others coming off far short of their proper shares.

In the foregoing proposals, I find myself, on several points, in substantia agreement with the suggestions of Sii William Martin and Dr. Shortland J

agree with them in thinking that Commissioners of Inquiry, prosecuting their investigations on or near the spot, would be better suited for the ascertainment of native ownership than a tribunal on the model of an English Court of Judicature. The peremptory procedure of such a Court is, for reasons already stated, cm tain to be the instrument of occasional injustice, and to create well-grounded dissatisfaction. At tlie same time, the jurisdiction of the Native Lands Court having to a great extent been accepted by the Maori people, its abolition would be inexpedient. It is a great point gained to have secured any sort of submission to such a jurisdiction. Those who framed, and those who have been working under, the Native Lands Act, may well congratulate themselves upon this achievement. It is practicable, and therefore the preferable course, to supply the patent defects of the Court in some such way as I have suggested.

As regards the important suggestion made by Sir William Martin and Dr. Shortland, that the purchase-money arising from the sale of native land should in all eases be paid into Court, the necessity for such a rule would, I think, be removed, if the principles on which I have been insisting were acted upon in legislation. Were it marie necessary in the purchase of native land, to obtain a certificate from the Court of the cession of the native title, pur.eliciaers would Have ib deal with the whole body of owners, und to pay over the money publicly to the chiefs in the old style. The creditors of individuals would have no hold on the fund whilst undistributed, the property being in the community, like that of a corporation. In the distribution of the money the natives would have to agree amongst themselves as to the shares. The Court, if entrusted with the division of the money, could do nothing more than give effect to such agreements (it being simply ridiculous to pretend that there are any definite principles applicable in the matter), and it is desirable to leave the entire responsibility with the natives themselves.

In conclusion, I may perhaps be allowed to say that although the work of the Commission is seemingly imperfect, inasmuch as we left unheard a large proportion of the complaints presented to us, I am yet of opinion (an opinion shared in, I have reason to believe, by those who conducted tlm cases on behalf of the native complainants) that the Commission has practically attained its only possible end, in the collection of a mass of authentic material as a basis for future legislation. In the cases heard, the evils of the existing state of the law are, I believe, so far as the Province of Hawke's Bay is concerned, fully exemplified ; and I think it will be found that every important question affecting future legislation has been raised, which the experience of transactions in that district could suggest. C. W. RICHMOND. Nelson, 81st July, 1873.

Cash 105 290 109 16 58 370 Total , ,., £948 Where the wine and spirits equal thirtynine per cent, of the whole. In the case of Paora Torotoro's account with the same hotel-keeper and dealer, commencing February, 1869, and ending 2nd June, 1871, a total of £626 is thus divided :— £ Cash 169 Clothing 148 , , 57 . 12 27 213 £626